Farmers' Fire Insurance v. John W. Bates & Co., 65 Ill. App. 37 (1896)

May 16, 1896 · Illinois Appellate Court
65 Ill. App. 37
Farmers' Fire Insurance Company v. John W. Bates & Co., for the use, etc.

Farmers’ Fire Insurance Company v. John W. Bates & Co., for the use, etc.

1. Insurance—Conditions of the Policy—Keeping BooTcs.—A condition in a policy of insurance upon a stock of merchandise, requiring the insured to keep books of account correctly detailing purchases and sales of stock, etc., is one lawful and material to the risk, and amounts to a warranty to do so on the part of the insured. The policy can not be enforced if it is violated. (60 Ill. App. 39.)

Assumpsit, on a policy of insurance. Appeal from the Circuit Court of Brown County; the Hon. Jefferson Orr, Judge, presiding. Heard in this court at the November term, 1895.

Reversed with a finding of facts.

Opinion, filed May 16, 1896.

E. A. Perry, attorney for appellant.

A. Hedrick and B. E. Yande venter, attorneys for appellees.

Mr. Justice Boggs

delivered the opinion of the Court.

This case was here at a former term. We then reversed a judgment in favor of the appellees upon the ground they *38had not complied with the provision in'the policy of insurance requiring them to keep books of account correctly detailing purchases and sales of their stock, etc. Appellant v. Appellee, 60 Ill. App. 39.

The case has again been tried and a second judgment rendered against the appellant company.

But the evidence upon the point named was not materially different from that upon which the first judgment was entered. Appellees did not keep books from which the depletions of the insured stock by sales could be ascertained.

They could only offer the opinion of witnesses as to the amount of goods on hand at the time of the fire.

The indemnity against loss by fire of which they seek to avail themselves, rested upon an express warranty upon their part they would keep books “correctly detailing” sales made from their stock of insured goods, and upon their agreement that the policy should not be enforcible if they violated that undertaking.

The contract was lawful and material to the risk, and the jury were not warranted in ignoring it.

The judgment must be, and is, reversed, and the cause will not be remanded.

The elerk will incorporate in the judgment of reversal the following finding of facts:

The court finds it appeared from the evidence the appellees did not keep books of account correctly detailing purchases and sales of their stock of goods upon which they claim insurance, as required in the policy upon which the suit was brought.